Extreme Vetting and the Muslim Ban

October 2, 2017

The White House's three attempts at a travel ban and "extreme vetting" policies for certain visa applicants are part of an overall strategy for closing off the country to particular visitors, especially Muslims. This report identifies at least three key failings of Trump's travel and vetting policies: their failure to enhance national security, engendered in part by the administration's perhaps willful blindness to the fact that the U.S. already has one of the world's most rigorous visitor screening systems; their discriminatory nature and reliance on unproven methodologies that target particular groups; and their real costs, including economic harm, to the American people.

 

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INTRODUCTION

Just one week after taking office, President Trump signed Executive Order 13769, which banned travel from seven predominantly Muslim countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen – for ninety days. The impact of this “Muslim ban” was immediate, dramatic, and highly visible: travelers were detained at airports and prevented from boarding planes to the United States as family and friends waited anxiously for their arrival. The ban’s repudiation of America’s commitment to religious freedom and nondiscrimination generated protests around the country. It was enjoined by federal courts around the country as discriminatory, until the Supreme Court allowed a limited portion of it to go forward. But the ban was just the beginning. According to Executive Order 13769 and its successor, Executive Order 13780, the ban was just a temporary measure, designed to pave the way for the indefinite suspension of travel from certain countries as well as “extreme vetting.”

The new regime, which is just coming into view, operates as a de facto Muslim ban. First, starting in May 2017, the State Department began implementing new vetting procedures for certain categories of visa applicants, the burden of which will likely fall most heavily on Muslims. Further, on September 24, 2017, President Trump issued a proclamation that indefinitely bars almost all travel to the United States from six Muslim-majority countries (Chad, Iran, Libya, Somalia, Syria, and Yemen), and subjects Iraqi nationals to “additional scrutiny.” Although the proclamation also bans travel from North Korea (from which a negligible number of people come to the U.S.) and some government officials from Venezuela, its impact is overwhelmingly on Muslims.

There is ample evidence that this is by design. Beginning on December 7, 2015, when then-candidate Trump called for a “total and complete shutdown of Muslims entering the United States,” the president made his goal crystal clear, repeatedly. Despite months of litigation accusing the president of intentional religious discrimination, that campaign pledge remained online until May 2017. Extreme vetting and the Muslim ban are ways of fulfilling this promise. As Trump himself said in the second presidential debate, “[t]he Muslim ban is something that in some form has morphed into an extreme vetting from certain areas of the world…” More recently, with the travel ban stopped by courts, Trump was even more explicit, tweeting: “In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!”

These measures are only part of the administration’s broader nationalistic, isolationist agenda which includes plans to cut legal immigration in half over a decade; rescind protections for “Dreamers,” undocumented young adults who were brought to the U.S. as children; substantially increase arrests of undocumented people; and build a wall on the U.S./Mexico border. The Trump agenda would also put a damper on travel to the United States by slowing down visa application processing, and increasing the required paperwork by “double, triple or more.”

The administration’s claim that travel bans and extreme vetting are necessary to protect the nation against terrorist threats from overseas is unsupported by evidence and – particularly in the context of the president’s stated goal of banning Muslims – seems pretextual. Multiple federal courts were unconvinced by the administration’s argument that national security required a cessation of travel from certain countries. And as a federal appellate court recently pointed out: “There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests.” Indeed, empirical studies show that the risk of a deadly attack on U.S. soil by a foreigner who has been improperly vetted is infinitesimally small. This is not surprising: The process for screening foreign nationals entering the U.S. is rigorous and the U.S. has one of the world’s most thorough visa vetting systems. Applicants not only face an imposing legal standard aimed at ensuring that those planning to visit the U.S. do not intend to stay in the country, but are also are run through a gamut of national security checks. Concerns are treated seriously: Anyone flagged for additional review is thoroughly examined by security officials, a process that can take months.

Nonetheless, the Trump administration appears committed to banning travel from certain Muslim-majority countries and adding further burdens to the already robust visa screening process.

First, the administration has instituted indefinite bans in place of the temporary ones, which again seem targeted as Muslims. The new rules stem from a “worldwide review,” mandated by the initial Muslim ban order, to determine whether additional information would be required from some countries to properly adjudicate visa applications. Although the administration has sought to the paint the process for deciding which countries were blacklisted as an objective exercise, it clearly also allowed for substantial discretion to be exercised. According to the Department of Homeland Security (DHS) 47 countries were found to be “inadequate” or “at risk” of becoming “inadequate” in meeting “global requirements for information sharing” related to identity verification and cooperation on counterterrorism matters. But in the end, the president selected eight nations for sanctions, citing “other risk factors” (e.g., significant terrorist presence within a country’s territory) and “foreign policy, national security, and counterterrorism goals”. These malleable considerations can be and were used to justify selective and sweeping travel restrictions. Indeed, the weight of the sanctions fell primarily on  Muslim countries, five of which were on the original Muslim ban list. The addition of North Korea and certain Venezuelan government officials to the blacklist seems to have little to do with the stated counterterrorism purpose of the initiative. Only a tiny number of travelers would be affected (just 109 visas were issued to North Korean nationals in 2016, for example) and neither country has a history of sponsoring terrorism in the United States.

Second, the Trump administration has begun imposing additional requirements on those still eligible for a visa to enter the United States. According to the September 2017 proclamation, nationals of Iran, Iraq, and Somalia will be subjected to additional screening. The State Department has started doing the same for “applicant populations warranting increased scrutiny.” We do not yet know how these populations will be chosen, but it is notable that the State Department estimates that 65,000 people annually will be subject to further scrutiny, which is roughly the number of temporary visas granted in fiscal year 2016 to citizens of countries affected by the first two Muslim ban executive orders.

Tagging individuals for additional scrutiny is not out of the ordinary in the visa process. But the context in which extreme vetting has been introduced suggests that it may be a means of erecting barriers based on stereotypes about Muslims rather than individualized assessments. Particularly troubling is the requirement that visa applicants provide consular officers with extensive information about their online presence, such as their social media handles. There are serious questions about the effectiveness of this tool. Anyone seeking to avoid scrutiny could easily erase their social media footprint. And interactions on platforms such as Facebook and Twitter are notoriously open to misinterpretation – especially since they may be truncated, conducted via symbols, and are context, culture and language specific. These types of checks do, however, undermine fundamental freedoms of speech and faith, both of foreigners and their American friends, families and business contacts. The collection of social media profiles also facilitates ideological profiling, a practice that has been rejected by Congress as contrary to American ideals and dismissed by experts as ineffective.

Analysis of social media profiles will not be limited to groups identified as particularly risky:  DHS is in the process of developing the requirements for an automatic screening system that will continuously analyze a multitude of databases, including those containing social media information, to evaluate such subjective characteristics as whether a traveler is likely to “becom[e] a positively contributing member of society.” Not only is this proposition of dubious efficacy, it raises loud alarm bells about privacy, free speech, and discrimination.

Making our already stringent visa regime more “extreme” also carries significant economic and cultural costs. It dampens international travel, which accounts for billions of dollars in revenue, both from travelers from the countries directly affected and others. Already, the Commerce Department is reporting a 4.2 percent drop in international visitors to the U.S. in the first quarter of 2017 compared to the first quarter of 2016. While it is impossible to say definitively that this was caused by the administration’s anti-foreigner policies and rhetoric, this inference hardly seems like a “reach.”

Clamping down on travel will also choke off the free exchange of ideas and interaction with the world that are hallmarks of a successful and open democratic society. Anecdotal reports suggest that visiting the U.S. is becoming more difficult. A trade summit at the University of Southern California intended to boost business ties between America and Africa had no Africans – all 60 of those scheduled to participate were denied visas. A gathering at the University of Wisconsin had to be canceled for the same reason. An all-girls robotics team from Afghanistan and a women’s soccer team from Tibet, both registered to participate in events intended to foster cross-cultural understanding, were denied visas. There are many other such stories that show how travel restrictions undermine American interests and values. If American universities are to be beacons of innovation and the exchange of ideas, they need to be able to welcome people from across the globe; if American values include gender equality, as the Muslim ban executive orders themselves state, the country should welcome aspiring women engineers and athletes; if America values economic growth, it needs to foster international business partnerships and science and technology learning. This is all to say that the national interest is not served by a reflexive ratcheting up of visa requirements, but requires a thoughtful evaluation of the range of interests at stake.

Extreme Vetting and the Muslim Ban by The Brennan Center for Justice on Scribd